By ADRIAN MORROW
Wednesday, June 20, 2018
WASHINGTON -- In the opening weeks of Donald Trump's presidency, his advisers came to the government department responsible for trade negotiations with a question: How could they pull the country out of NAFTA?
Lawyers in the Office of the United States Trade Representative, according to a former official who was close to the discussions, told them it was complicated because Congress may have the power to block such a move.
Over a period of weeks, the career civil servants at USTR dissuaded Mr. Trump's most nationalistic aides, Steve Bannon and Peter Navarro, from trying to terminate the trilateral trade pact with Canada and Mexico, the official said.
The administration determined to renegotiate the North American free-trade agreement instead.
The power of lawmakers to rein in Mr. Trump has loomed large over his increasingly aggressive trade agenda during his 17 months in office.
The President has ignored the pleas of his free-trading Republican (GOP) caucus, sticking with protectionist NAFTA demands and imposing hefty tariffs on Canadian and Mexican steel and aluminium.
Now, one GOP senator is leading a legislative push to stop Mr. Trump's metal tariffs. The move has divided caucus and raised two crucial questions, with more than $1-trillion in annual trade hanging in the balance: Can Congress stop the President from tearing the world's largest freetrade zone asunder? And does it want to?
The U.S. Constitution's commerce clause gives Congress the power to regulate trade. Congress has delegated some of this power to the President through various pieces of legislation. One is the Trade Expansion Act of 1962, Section 232 of which Mr. Trump has used to bring in the steel and aluminium tariffs. Another is the Trade Promotion Authority of 2015, which gives him the ability to negotiate trade deals.
For more than a year, the GOP and business leaders have tried to use the power of persuasion to talk Mr. Trump out of his trade protectionism. Republican members of Congress have cajoled him in private and written open letters, while Corporate America - most vocally the U.S. Chamber of Commerce - has publicly condemned his moves. Mr. Trump, however, has charged ahead.
Earlier this month, Senator Bob Corker, a Tennessee Republican who chairs the foreign relation committee, tabled legislation to give Congress the ability to veto Mr. Trump's Section 232 tariffs. It was tacked on as an amendment to an unrelated bill, but GOP leaders stopped it from coming to a vote: Even though they largely agreed with the measure, they did not want to anger Mr. Trump or his base ahead of congressional elections in the fall.
"I don't think this is a time to pick a fight with the President," Senator John Cornyn, the No. 2ranked Republican in the Senate, told reporters.
Mr. Corker has vowed to find another way to get similar legislation passed, even as he vented his frustration at fellow Republicans for abandoning the party's freetrade ideals to stay on Mr. Trump's good side.
"It's almost becoming a cultish thing, isn't it?" he said last week.
"It's not a good place for any party to end up, with a cult-like situation as it relates to a president that happens to be, purportedly, of the same party."
Laurence Tribe, a Harvard University constitutional law expert, said Congress could amend the Trade Expansion Act to take away or restrict Mr. Trump's ability to levy tariffs under Section 232. But legislators cannot give themselves the power to block individual tariffs imposed by the President, because of a 1983 U.S. Supreme Court ruling on an immigration case, which removed Congress's ability to veto decisions by the executive branch of government.
"Congress could at any time repeal or limit the application of Section 232, but it cannot retain for itself a legislative veto over presidential determinations of what he claims to be national security exemptions under that section," Mr. Tribe wrote in an e-mail.
So far, Mr. Trump has held back from his more extreme threat of tearing up NAFTA. If he does try, the legal complications would be even tougher to sort out than the tariff fight.
Even the USTR office remained unsure about Congress's power to stop the President from unilaterally pulling out of the deal, after studying the question for Mr. Bannon and Mr. Navarro. The former insider, who spoke on condition of anonymity, said the NAFTA deal itself and the Trade Promotion Authority appear to say two different things. While the pact on its own gives the President the power to end the deal, the TPA suggests Congress must be involved.
Messier still is the NAFTA Implementation Act, which was passed by Congress to put the provisions of the deal into effect.
The act directly implements some pieces of the deal, including the Chapter 19 dispute-resolution system, but also delegates power to the President to implement others, such as setting some specific tariff rates. This means that, if Mr. Trump pulled out of NAFTA, he could unilaterally reverse some of the deal while other portions of it would stay in effect unless Congress repealed the act.
"The President can withdraw under the agreement, but that legislation would still be in place," said Thomas Bollyky, a Georgetown University law professor and former trade negotiator.
"No one wants to arrive at that point where you have a zombie NAFTA."
Congress's broad constitutional jurisdiction over trade means it could pass legislation curbing Mr. Trump's power, he said - the question is more political: "I don't think we're there politically, yet, where the majority wants to take those actions. But they certainly have the ability to."
Businesses and other outside groups, for their part, are stepping up the pressure. One political action committee called Republicans Fighting Tariffs aired ads on Fox Business and CNBC last week calling on Congress to step up. "These tariffs are terrible for our businesses, for our consumers, for our workers and for our economy," an announcer intoned.
Scott Lincicome, a trade expert at the libertarian Cato Institute who is advising the group, said pressure from the forces of free trade may have failed to completely hold Mr. Trump back but argued they have at least mitigated the damage, such as by stopping him pulling out of NAFTA.
"Nobody would say that we're in a good place on trade, but the business community has had some success in making sure we don't go off the cliff," he said.
"We're still standing with our toes on the edge."